CustodyCustodyPhysical Custody Legal Custody
Medical Educational Religious Decisions impacting well beingTypes of Custody–Sole Custody– Joint Custody–No joint custody when history of DV
StandingStandingCustody (until 18 yo)
Blood relation MarriagePersonal contact with child
Guardianship (until 21 yo)Same as custody, however, guardianship will not be
granted to person with a felony conviction or history of neglect or abuse
Blood relation MarriagePersonal contact with child
Visitation (until 18 yo)ParentSiblingGrandparent
Burden of Proof in Burden of Proof in Custody CasesCustody Cases
Burden is always on the Petitioner1.Parent v. Parent
Best interest of the child
2.Non- Parent v. Parent Two Prongs:
1. Extraordinary circumstances2. Best interest of the child
3.Non-Parent v. Non-Parent Best interest of the child
Evidence in Custody CasesEvidence in Custody Cases
1. All relevant evidence can be produced up until the time that court renders a decision.1. Dirty Laundry2. Recommendation of Mental Health
Professional3. Therapists, teachers4. Financial status 5. In camera of child 6. Position of Attorney for Child
Best Interest Factors Best Interest Factors – Long-term stability
Material needs
Educational welfare
Emotional stability
Which parent is most likely to encourage relationship with non-custodial parent
Medical welfare
– Siblings– Use of corporal
punishment– Domestic violence
DRL§240(1)• Must be
considered BUT no presumption in favor of Non- abusive parent
• AFC’s Position
–Medical welfare
– Siblings
– Use of corporal punishment
– Domestic violence DRL§240(1)• Must be considered BUT no
presumption in favor of Non- abusive parent AFC’s Position
Non-Parent v. ParentNon-Parent v. ParentExtraordinary Extraordinary CircumstancesCircumstances
BENNETT v. JEFFRIES Pre-Bennett: Focus on parental
fitness- Neglect, abuse, abandonmentPost- Bennett: Parent can be deprived of
custody even if parent is fit - based on a prolonged separation and a child’s attachment to a non-parent
Extraordinary Extraordinary CircumstancesCircumstances
– Abandonment – Longstanding
placement with a non-parent
– Death – Negative impact
on sibling (step-parent)
– DV– Substance abuse
–Mental illness – Abuse – Psychological
bond to non-parent
– Poor relationship with parent
– Death of parent
Modification petitionsModification petitions• Parent v. parent –Substantial change in circumstances
• Parent v. non-parent - –No prior finding of EC – non-parent
must prove existence of EC–Prior EC finding – parent must prove
substantial change in circumstances
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Every child at the center of a court case has a unique voice. And that
voice must be heard